For women in professional and corporate jobs, much of the discrimination and inequity faced in the past has been confronted—and at least to some extent, conquered. But the fact is that we have a two-tiered system, where some working women have a full panoply of rights while others have few or none at all. We allow blatant discrimination by small employers. Domestic workers are cut out of our wage and overtime laws. Part-time workers, disproportionately women, are denied basic benefits. Laws have been written through a process of compromise and negotiation, and in each case vulnerable workers were the bargaining chip that was sacrificed to guarantee the policy’s enactment. For these workers, the system that was supposed to act as a safety net has become a sieve—and they are still falling through.
Caroline Fredrickson is a powerful advocate and DC insider who has witnessed the legislative compromises that leave out temps, farmworkers, staff at small businesses, immigrants, and others who fall outside an intentionally narrow definition of “employees.” The women in this fast-growing part of the workforce are denied minimum wage, maternity leave, health care, the right to unionize, and protection from harassment and discrimination—all within the bounds of the law. If current trends continue, their fate will be the future of all American workers.
“[An] informative, occasionally shocking exploration of the state of women’s rights in the workplace.” —Kirkus Reviews
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About the Author
Caroline Fredrickson is the president of the American Constitution Society. She has been widely published on a range of legal and constitutional issues and is a frequent guest on television and radio shows. Before joining ACS, Fredrickson served as the director of the ACLU’s Washington legislative office and as general counsel and legal director of NARAL Pro-Choice America. She lives in Washington, D.C.
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THE TEST OF OUR PROGRESS: A BRIEF HISTORY OF RACE, GENDER, AND WORKER PROTECTIONS IN THE TWENTIETH CENTURY
I see a great nation, upon a great continent, blessed with a great wealth of natural resources. ... In this nation I see tens of millions of its citizens — a substantial part of its whole population — who at this very moment are denied the greater part of what the very lowest standards of today call the necessities of life.
I see millions of families trying to live on incomes so meager that the pall of family disaster hangs over them day by day.
I see millions whose daily lives in city and on farm continue under conditions labeled indecent by a so-called polite society half a century ago.
I see millions denied education, recreation, and the opportunity to better their lot and the lot of their children.
I see millions lacking the means to buy the products of farm and factory and by their poverty denying work and productiveness to many other millions.
I see one-third of a nation ill-housed, ill-clad, ill-nourished.
But it is not in despair that I paint you that picture. I paint it for you in hope — because the nation, seeing and understanding the injustice in it, proposes to paint it out. ... The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.
— Franklin D. Roosevelt, Inaugural Address, January 20, 1937
One of the great achievements of the New Deal was guaranteeing workers a minimum wage and a forty-hour workweek, enforced by the requirement of overtime pay for extra hours worked. Workers fought successfully for the right to join unions and bargain collectively with their employers. As the New Deal gave way to the civil rights movement, workers were able to win protections against job discrimination based on race, national origin, religion, and gender. Subsequent legislation added prohibitions on age and disability discrimination — and some states, and hopefully soon the federal government, have made it illegal to discriminate on the basis of sexual orientation and gender identity. The twentieth century would seem to have been a linear march forward for workers' rights — but only if we ignore those workers who did not seem to merit protection or were explicitly thrown under the bus by the lawmakers who drafted the bills.
It is typical in the legislative process for legislators to cut deals to get laws passed, opting to give less to one group in order to get more for another. During the New Deal, even those elected officials who thought they had the best interests of low-wage workers at heart saw fit to exclude certain people to accommodate hostile legislators predominantly from the South. As President Franklin D. Roosevelt explained rather forthrightly when pressed about his failure to support antilynching legislation — which, like providing job protections for African American workers, was anathema to southern congressmen — "If I come out for the anti-lynching bill now, they will block every bill I ask Congress to pass to keep America from collapsing. I just can't take that risk." Thus, in spite of the advances, the history of the adoption of our progressive labor laws tells a story that sometimes shows overt racism and sexism on the part of the statutes' authors; that sometimes demonstrates unconscious — or at least unspoken — prejudices; and that often reflects a vision of a workplace that no longer exists (and for many, never did), when men worked in factories and women stayed home and raised the children. Who was left out tells as much as does who was put in.
WOMEN'S WORK: MISOGYNY AND MIXED MESSAGES
In the twentieth century, workers fought for job protections, resulting in some phenomenal victories — the Fair Labor Standards Act, the National Labor Relations Act, and later the Equal Pay Act, Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act of 1978, and the Family and Medical Leave Act of 1993. Workers gained the right to earn a minimum wage and work a limited number of hours per week or get paid overtime; they were allowed to join unions and bargain for wages and benefits; they were protected from job discrimination on the basis of race, ethnicity, gender, religion, and disability; they won the right to take time off when having a child or caring for a sick family member; and women would no longer face adverse job consequences when they got pregnant. Well, sort of.
It is important to put all this legislative activity in context, not just in the familiar frame of economic hardship that was the Great Depression and the response that was the New Deal, but in the mind-set of the cultural milieu, and in particular that period's entrenched racism, visceral anti-immigrant paranoia, and deep-seated hostility to women's emancipation. This context is not just scene setting but goes a long way to explain how our laws came to omit certain workers from their embrace.
During the Great Depression, working women were frequently criticized for allegedly taking jobs away from men, who were assumed to be the primary breadwinners in their families. The media disparaged working women, who had allegedly abandoned their true calling of motherhood and housework for shallow and silly reasons. They were accused of working simply because they desired a little extra money for frivolities or wanted to fulfill themselves rather than focusing on their proper roles in the home of wife and mother. Writer Frank Hopkins asked, "Would we not all be happier ... if we could return to the philosophy of my grandmother's day when the average woman took it for granted that she must content herself with the best lot provided by her husband?" Working women were blamed for many social ills, from undermining the strength of family ties to contributing to the delinquency of their children. Not surprisingly — because while emancipated white women were viewed with hostility, commentators blithely ignored the fact that black women were continuing to work in high numbers — the great angst about working women and their dereliction of their duties of hearth and home focused on white women. As the historian Jacqueline Jones notes in her book Labor of Love, Labor of Sorrow, "Working wives became a public issue to the extent that they encroached upon the prerogatives of white men at home and on the job." Black housekeepers and nannies did not take men's jobs away or challenge men's role as family patriarchs and thus could be ignored.
Although newspaper reporters and commentators characterized working women as silly and shallow, the sad reality was that many women desperately needed a job to keep their families from falling off the cliff. By 1931, 2 million women who had been employed before the Depression found themselves out of work. Between 20 and 50 percent of the newly unemployed women had been the family's sole breadwinner, making the loss of employment existential and plunging their families not just into poverty but into destitution. But with high unemployment, notes historian Philip Foner, "some legislators and employers sought to deny work to married women whose husbands had jobs. Section 213 of the 1932 Federal Economy Act, for example, required that one spouse resign if both husband and wife worked for the federal government. This meant, technically, that it was up to both marriage partners to decide which one should resign. But a Women's Bureau analysis of the results of Section 213 showed that more than 75 percent of the spouses who did resign were women. Section 213 remained on the books until 1937."
State legislatures around the country also debated legislation that would have directly barred married women from certain jobs. Although many bills did not pass and others were found unconstitutional, women were still excluded from state jobs by executive order in several states. And, according to a survey done by the National Education Association in 1931, more than three-quarters of the fifteen hundred school systems in the survey would not hire women as teachers if they were married and two-thirds of the schools had fired married women. Married women were also pushed out of jobs in banks, insurance companies, utilities, and public transportation. African American women suffered even more from unemployment in the Great Depression. Some white families fired their black housekeepers, cooks, and nannies because they could no longer afford the help, while others did so because they could afford to replace their black employees with higher-status white servants — more white women were seeking domestic work to support their families and bumped African American women out of these jobs. For African American women, the impact was devastating.
In such urgent need of work, African American women in urban areas would gather at specific street corners to wait for the white women who would drive in to hire them for day labor. Similar in nature to the parking lots where landscapers and construction firms hire day laborers today, these street corner labor exchanges were known as "slave markets." In a 1935 article for The Crisis, the magazine of the National Association for the Advancement of Colored People, Ella Baker and Marvel Cooke described how these "slave markets" could be found all over the Bronx, catering mostly to white women who came in from Westchester, Long Island, and the Upper East Side to purchase a few hours or a full day of a black woman's time for between 15 and 30 cents per hour. "The lower middle-class housewife, ... having dreamed of the luxury of a maid, found opportunity staring her in the face in the form of Negro women pressed to the wall by poverty, starvation and discrimination," they wrote.
The busiest markets, those with the highest "bids" and the most "buyers," were the two at 167th Street and Jerome Avenue and at Simpson Street and Westchester Avenue. The black women started to gather early in the morning and stayed until they were hired or the white housewives had stopped coming. Sometimes white men came "shopping" for a different kind of labor from the women. Leaning against walls, crouching, or, if lucky, sitting on a box or a bench, the "slaves" came in foul weather and fair, braving bitter cold and enervating heat to earn a bit of money to keep their lives together. Many of these women had once worked as servants for upper-class families, before the Great Depression made white maids more affordable. The large pool of unemployed and desperate women made it easy for white families to mistreat them by forcing long hours and extra duties for no extra money, lowering wages, or failing to pay wages at all. A contemporary account captures the mind-set of those white employers taking advantage of the destitution of African American women: "A southern white man ... admitted as a matter of course that his cook was underpaid, but explained that this was necessary, since, if he gave her more money, she might soon have so much that she would no longer be willing to work for him."
The "slave market" was more than metaphorical. In many southern states, legislators attempted to bind African American workers to low wages and penury by enacting a web of laws that amounted to slavery by other means. Prohibitions on leaving work and debt laws subjected workers in the fields and in the plantation homes to nearly insurmountable restraints on their ability to pursue better opportunities. Despite Supreme Court decisions starting in 1911, declaring these laws unconstitutional under the Thirteenth Amendment, states did not cease to enforce them until the early 1940s.
Pervasive attitudes about race, women, and work played an enormous role in shaping and limiting what work would be considered deserving of protection by members of Congress during the New Deal. The belief that so-called women's work, consisting of caregiving, housekeeping, and similar occupations, was women's natural role helped justify legislation that gave rights only to those engaged in real "work," mostly white men. With much of the work in the home having been done by African American women, it was particularly devalued as a legacy of slavery and racial oppression. Domestic labor was known as "niggers' work," and, two legal scholars observe, "Not surprisingly, the mammy image — a large, maternal figure with a headscarf and almost always a wide-toothed grin — persists as the most enduring racial caricature of African-American women." Such attitudes made it easy to throw these women and these jobs over the side. Historian Susan Ware writes that "while the New Deal pushed the federal government in new directions, the coverage of these new programs was never complete. Many workers were left outside of the scope of the relief programs and social security. In the case of blacks, the exclusion was often the result of deliberate discrimination. But for women, who likewise did not always receive their full share of benefits, the discrimination was less calculated. Unless reminded, policymakers simply forgot that women, too, were hurt by the Depression." This deliberate discrimination and less-than-benign neglect characterize not only the New Deal laws but much of what came after, continuing to shape our laws and their application today.
PROTECTING THE JIM CROW ECONOMY
Even with the omissions, a broad swath of workers was helped significantly by the reforms pushed through by President Franklin D. Roosevelt, including the National Industrial Recovery Act, which set up minimum standards for wages and hours in certain industries through the National Recovery Administration, the jobs program run by the Works Progress Administration (WPA), financial help for single mothers, retirement security, and the Fair Labor Standards Act. Despite the wage discrimination built into these statutes, they did serve to raise women's wages because women had been in such low-paying jobs before the legislation was adopted. Overall, women's wages increased by 3 percent, to equal 63 percent of men's wages by the mid-1930s.
But women and people of color were certainly not granted the same protections as other workers and unquestionably were not seen as entitled to equal wages or an equal chance to get a job. In the work projects created by the government, women and African Americans were considered less worthy of a job than men — very few women overall, and an extremely small number of women of color, were hired to do WPA jobs. These jobs went to the most "deserving" workers — white men were assumed to be breadwinners and were at the head of the line for any openings. African American women were at the bottom of this hierarchy. From 1935 to 1941, only one-fifth of WPA workers were women. African American women made up only 3 percent of the workforce, despite their overwhelming need — a much higher proportion of black women, especially in the South, were sole breadwinners for their families. Complicating the efforts of black families to stay afloat, southern whites worked assiduously to prevent both black men and black women from getting WPA jobs because the attraction of better pay and working conditions would deny employers domestic help and farm laborers.
So while women's wages went up because of some of these programs, they stayed well below what men were earning, and the National Recovery Administration explicitly pegged women's wages below men's, even when they were doing exactly the same work. For example, men in the garment industry coded as "Jacket, Coat, Reefer and Dress Operators, Male," earned $1 per hour, while the code "Jacket, Coat, Reefer and Dress Operators, Female" paid only 90 cents per hour. The National Recovery Administration code also gave higher wages to certain job categories that were filled by men despite requiring no higher skill level than the job categories filled by women. The segregation of women into certain types of jobs, which, though equal in skill, experience, and training, pay less than those held by men, is a pervasive element of our current economy, even though no longer mandated by statute.
Southern members of Congress had also tried to set lower wages for African American men, in addition to the lower wage rate for women. Unlike the efforts to pay women less, the racially based wage distinction was not adopted, but that was only because legislators chose superficially race-neutral means such as geography and occupational distinctions to achieve the same end. By using these categories, the statute implicitly reaffirmed the preexisting discrimination in the South against women, blacks, and rural workers; at the very bottom of the wage scale were southern black women employed by laundries and tobacco-processing plants. The National Industrial Recovery Act also strengthened prevailing inequalities by putting the implementation of the programs under local control, which meant, particularly in the South, that they were not administered fairly, to put it mildly.(Continues…)
Excerpted from "Under the Bus"
Copyright © 2015 Caroline Fredrickson.
Excerpted by permission of The New Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
1. The Test of Our Progress: A Brief History of Race, Gender, and Worker Protections in the Twentieth Century,
2. The Wages of Discrimination: Paycheck Unfairness,
3. Punching the Clock: Part-Time, Just-in-Time, and Overtime,
4. The Wild West: The Lawless World of the Contingent Workforce,
5. Bye-Bye, Baby: Giving Birth and Back to Work,
6. Did Mary Poppins Have Kids? Child Care and the Working Mother,
7. Leaning Together,